THE SCHIAVO CASE: THE CONTEXT; Schiavo Lesson on Judiciary Trump Card

By ADAM LIPTAK

Published: March 24, 2005

The United States Congress and the governor of Florida have devoted extraordinary and all but single-minded energy to keeping Terri Schiavo alive. But all they have achieved so far is a bitter lesson in judicial supremacy.

It is a lesson as old as Marbury v. Madison, the 1803 case in which Chief Justice John Marshall famously said that ''it is emphatically the province and duty of the judicial department to say what the law is,'' and as fresh as Bush v. Gore, the 2000 decision that decided a presidential election.

Its latest teachers were Judge George W. Greer, of the Pinellas-Pasco Circuit Court in Clearwater, Fla., and the federal appeals court in Atlanta.

Judge Greer blocked Gov. Jeb Bush from following through on a suggestion at a news conference that state officials might take Ms. Schiavo into protective custody. And, even as he agreed to consider overnight what state officials called new evidence that she might be conscious, Judge Greer staked out a primary role in the process.

A lawyer for the state told the judge that the three branches of the government are equal.

And the United States Court of Appeals for the 11th Circuit, in Atlanta, in successive decisions yesterday of a three-judge panel and then the entire 12-member court, refused to order Ms. Schiavo's feeding tube to be reinserted notwithstanding a law enacted by Congress on Monday that many of its supporters thought required at least that.

If nothing else, this series of decisions vindicated the one conception of American judicial power.

''It has been the basic premise of the three-branch system set up by the Constitution,'' said Eric M. Freedman, a law professor at Hofstra, ''that judgments in individual cases are to be made by judges and not legislative bodies or executive officials. That division, which originated from unhappy experience in England, has been a valuable protection of liberty in this country over many centuries.''

The decisions also illustrate how protective the judiciary branch can be of its status in a divided government.

''Judges don't like to be fooled around with,'' said Mark Tushnet, a law professor at Georgetown. ''If executive officials or legislators do something that judges think look as if they're being fooled around with, they will be extremely resistant.''

And judges often protect their own.

The federal judges whom Congress authorized to rehear the Schiavo case seemed reluctant to upset what their state-court colleagues had decided.

In his decision refusing to reinsert the feeding tube on Tuesday, Judge James D. Whittemore, of the Federal District Court in Tampa, expressed solicitude for Judge Greer, saying that accusations that he had acted in a biased and unlawful fashion were ''without merit.''

At the same time, he explained to Congress and to Ms. Schiavo's parents that the new law did not require him to preserve Ms. Schiavo's life. Her parents had not demonstrated, he said, the only thing that mattered in court: a substantial likelihood that they would succeed on the merits of their case.

The divided three-judge panel that upheld Judge Whittemore's decision, in turn, went out of its way to praise his work as ''carefully thought out'' and took the relatively unusual step of appending it to the majority decision.

In almost the same breath, the two judges who joined the unsigned majority opinion, Ed Carnes and Frank M. Hull, said the law enacted on Monday could not undo years of litigation in the Florida state courts. And in what could be read as a dig at Congress, the judges suggested that better drafting might have yielded a different result.

''Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay,'' the majority said.

An early version of the legislation passed on Monday said that the district judge hearing the Schiavo case ''shall'' issue a stay of the state court proceedings. A later one said it ''may'' issue such a stay. The law as enacted omitted the provision entirely.

Yesterday's panel decision quoted at length and with something like glee from an exchange between Senator Carl Levin, Democrat of Michigan, and the Senate majority leader, Bill Frist, Republican of Tennessee.

Senator Levin asked Senator Frist about the significance of the omitted stay provision.

''Nothing in the current bill or its legislative history mandates a stay,'' Senator Frist replied. ''I would assume, however, the federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination.''

Dr. Frist assumed wrong, the majority suggested. Indeed, the music of the panel decision was that Congress could not win. Had it passed the earlier version of the law, the courts might well have held it unconstitutional. The version Congress did pass, the panel majority said yesterday, was ineffective.

In the afternoon, the full 12-member appeals court declined to hear the case, with two judges publishing dissents.

By yesterday afternoon, both the White House and the Florida Legislature had cried uncle. Governor Bush, however, indicated he was prepared to fight on. Whether he prevails seems to depend on Judge Greer.

Professor Tushnet said that demonstrated how much power judges wield in the American system. ''You can mess with Mother Nature,'' he said, ''but it's really hard to do effectively. Mother Nature has a lot of tools at her disposal. So do judges.''

Erwin Chemerinsky, a law professor at Duke University, said no one should take pleasure in these clashes. Just as hard cases make bad law, he said, ''tragic cases make bad law.''